RHONE POULENC AGRICHEM SA (PTY) LTDSecond Respondent
MINISTER OF TRADE & INDUSTRYThird Respondent
COMMISSIONER FOR CUSTOMS AND EXCISEFourth Respondent
CORAM: JOUBERT, HEFER, NESTADT, FH GROSSKOPF, et VAN DEN HEEVER JJA
Heard: 17 November 1994 Delivered: 23 Februarie 1995
J U D G M E N T
On 4 September 1992 the Appellant obtained in the Durban and Coast Local Division a rule nisi, returnable on 24 September 1992, calling on the First and Second Respondents to show cause why they should not be interdicted "from selling, distributing or otherwise disposing of the consignment of herbicides, anti-sprouting products and plant-growth regulators with diuron as active ingredient, imported under Bill of Entry no 74573 dated 12 August 1992". The rule nisi was to operate as an interim interdict pending the determination of the application. The Third and Fourth Respondents applied successfully to intervene in the proceedings. On 19 February 1993 LEVINSOHN J dismissed the Appellant's application and discharged the rule nisi. The Appellant was ordered to pay the costs of the First and Second Respondents. Leave to appeal was granted to the Appellant by the Court a quo. The Third and Fourth Respondents abide the judgment of this Court.
In terms of sec 2 (1) of the Import and Export Control Act No 45 of 1963 ("the Import Act") the Minister of Trade and Industry and Tourism "may whenever he deems it necessary or expedient in the public interest, by notice in the Gazette prescribe that no goods of a specified class or kind ... (b) shall
3 be imported into the Republic, except under the authority of and in accordance
with the conditions slated in a permit issued by him or by a person authorized
by him". (My underlining). A person who imports any goods in contravention
of the provisions of any notice issued under sec 2 (1) commits an offence (sec
4 (1) (a)). Upon conviction of the offence the goods in question may be
declared forfeited to the State. (sec 4 (2)).
On 23 December 1988 the Deputy Minister of Economic Affairs and
Technology, acting in terms of sec 2 of the Import Act, issued Government
contrary to the provisions of the Import Act and the Customs Act.
The First and Second Respondents in their Answering Affidavits maintained that the import permit was valid and consequently the importation was lawful. Validity of the importation
The first question that falls for decision is the validity of the importation.
In terms of sec 2 (1) (b) of the Import Act the Minister is empowered to prescribe by notice in the Gazette that no goods "of a specified class or
kind" shall be imported into the Republic except under the authority of a
permit and in accordance with the conditions therein staled. The First and Second Respondents in their Answering Affidavits maintained that the import permit was valid and consequently the importation was valid. According to them the only description which was relevant for the purposes of the import permit was the reference to the "description of goods" in the 1st column of Schedule 1 A in Government Notice R1635 of 4 August 1989. The reference in the 2nd column to "tariff heading" or code, namely 38.30.90, was irrelevant for purposes of the import permit and was relevant only to ascertain the duty payable in the circumstances. The Court a quo upheld their contentions by deciding that the "description of goods" and not the tariff headings was decisive in deciding what category of goods required import permits.
I cannot agree with this conclusion. The Minister's function is to prescribe and specify by notice in the Gazette a "class or kind" of goods in respect of which his prescription and specification is to operate. There is no provision in the Import Act which restricts the Ministerial specification to "description of goods" in words. The Minister's intention was to include "tariff
10 headings" in digits to form part of each "class or kind". In my judgment the
"tariff headings" constitute part of the specification of the "class or kind" of
goods to which they relate. As such the "tariff headings" are relevant in
deciding what category of goods require import permits.
I have dealt supra with the great disparity between the import permit
and the bill of entry. The effect of the import permit is that only herbicides
without diuron as an active ingredient, may be imported, whereas the bill of
entry relates to herbicides with diuron as an active ingredient. In view of this
import permit and the bill of entry, it follows that the entry of the goods is
invalid in terms of sec 40 (1) (a) of the Customs Act which provides as
"No entry shall be valid unless -
(a) in the case of imported . . . goods, the description and particulars of the goods . . . declared in that entry correspond with the description and particulars of the goods ... in any certificate, permit ... by which the importation ... of those goods is authorized". (My underlining).
The answer to the first question is therefore that the importation of the
consignment in question is invalid. The judgment of the Court a quo to the contrary cannot stand. Permanent Interdict
The second question is whether the Appellant has on a balance of probabilities succeeded in making out a case for a permanent interdict against the First and Second Respondents. At the outset I must point out that because it is common cause that the Second Respondent has sold and delivered the imported consignment of herbicides to the First Respondent, there is no factual basis on which a permanent interdict could be granted against the Second Respondent. The enquiry must accordingly be restricted to the First Respondent who is at present in possession of the bulk of the imported consignment of herbicides.
The requisites for a permanent interdict (mandament poenaal were slated by INNES JA in Setlogelo v Setlogelo 1914 A D 221 at p 227 as follows: "The requisites for the right to claim an interdict are well known; a clear right, injury actually committed or reasonably apprehended, and the absence of similar protection by any other ordinary remedy". These requisites
12 are based on a passage by Van der Linden (1756-1835) in his Koopmans
Handboek 3,1.4.7 which was translated into Afrikaans by HIEMSTRA J in
Meyer v Administrator. Tvl. 1961 (4) S A 55 T at p 57A-E.
The question which arises is whether the Appellant has a clear right
which can be protected. The Appellant as the sole local manufacturer of
herbicides containing diuron as an ingredient relies on a clear right at common
law to carry on its lawful trade or business without unlawful interference from
others (Patz) v Greene & Co 1907 T.S. 427 at p 436). In modern legal
terminology the Appellant has a subjective right to exercise its trade or business
freely in the absence of special legal restrictions and agreements to the